Common Sense and Sensibility—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on June 29, 2011.

Common Sense and Sensibility By Linda Greenhouse ’78 MSL

This month, the Supreme Court ruled that police, when questioning a child suspected of committing a crime, must take the suspect’s age into account and may have to provide Miranda warnings in circumstances that would not require the warnings to be given to an adult suspect. The vote was 5 to 4, and the author of the majority opinion was Justice Sonia Sotomayor. The premise that children are different from adults and may feel coercive pressure when an adult would not, she said, was simply one of “commonsense reality.”

The decision, J.D.B. v. North Carolina, is significant in its own right, but as an expression of common sense that sparked a vigorous dissent from four justices, it also shines a light on how polarized the court has become. Coming a few days after the 45th anniversary of the court’s ruling in Miranda v. Arizona and 11 years after then-Chief Justice William H. Rehnquist’s declaration that the Miranda warnings “have become part of our national culture,” the decision also raises a question about the future of the Miranda decision itself.

Miranda requires that a suspect who is “in custody” must be given the familiar advice about avoiding self-incrimination and requesting a lawyer. While a person under arrest is obviously in custody, the decision made clear that custody is to be understood in context; if all that counted was a formal arrest, the police could all too easily evade Miranda’s requirement altogether. Rather, as the court elaborated in subsequent decisions, what matters is the “objective inquiry” of whether, given the circumstances of the interrogation, a “reasonable person” would feel free to terminate the encounter with the police and leave the room.

In the case the court decided this month, the question was whether a suspect’s age is part of the context that should be taken into account. Might a hypothetical “reasonable child” feel himself “in custody” even if a reasonable adult would not, and how should that matter for purposes of Miranda?

J.D.B. was 13 years old when a uniformed police officer pulled him from his middle-school social studies class and, along with another officer and two school administrators, questioned him behind a closed door about recent burglaries in the neighborhood. Only after the boy confessed was he advised of his rights and permitted to catch the school bus home. The North Carolina Supreme Court refused to suppress his confession, ruling that age was not a proper consideration for the determination and that J.D.B. had not been in custody during the questioning.

Justice Sotomayor’s majority opinion did not resolve the question of whether J.D.B. had been in custody. Instead, the court held that a child’s age was relevant, and instructed the North Carolina court to take account of J.D.B.’s age in reconsidering the custody question. Justice Sotomayor said that considering age should clarify, rather than complicate, the obligation of the police toward young suspects, as well as the ability of judges to assess the nature of a given interrogation. She explained: “In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.” That was true, she said, even of “those whose childhoods have long since passed.”

So why did this common-sense opinion receive only five votes (the others were Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan) rather than nine? Granted that common sense has no place in the legal pantheon. The late Karl Llewellyn, a Columbia Law School professor and leading advocate of “legal realism,” used to tell beginning law students that “the hardest job of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia.” Still, the question of what happened in the J.D.B. case is especially pertinent with respect to Chief Justice John G. Roberts Jr., who in other constitutional contexts has seemed quite comfortable taking a child’s age into account.

Three years ago, for example, the chief justice voted with an 8-to-1 majority (only Justice Clarence Thomas dissented) in holding that school administrators had violated the Fourth Amendment’s prohibition of unreasonable search and seizure by forcing a 13-year-old girl to strip in order to search her underwear for illicit prescription medication. And just last year, he joined a 6-to-3 decision that barred a sentence of life without parole for crimes other than murder committed by those under the age of 18.

That decision, Graham v. Florida, was based on the Eighth Amendment’s prohibition against cruel and unusual punishment. While agreeing with the result, Chief Justice Roberts did not join Justice Kennedy’s majority opinion, which established a categorical rule against the life-without-parole sentence in the circumstance under review. In a separate concurring opinion, the chief justice agreed that age was always relevant but said that courts should take “the particular defendant and the particular crime” into account, rather than impose a categorical bar to the sentence. In the case at hand, a violent robbery, he said the 16-year-old defendant’s evident immaturity as well as his chronological age made life without parole an inappropriate sentence.

So it was surprising to find the chief justice joining the dissenting opinion that Justice Samuel A. Alito Jr. wrote in the new Miranda case. The thrust of the dissent, also joined by Justices Antonin Scalia and Clarence Thomas, was that the majority opinion was “fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases.” Justice Alito went on to insist that a clear rule meant that any personal characteristics of the suspect, including age, could not be considered by the police or by the courts in deciding whether a suspect was in custody.

Miranda v. Arizona was based on the Fifth Amendment’s protection against compelled self-incrimination. True, the court has subsequently indicated that Miranda was not compelled by the Fifth Amendment but rather is a “prophylactic rule” designed to prevent Fifth Amendment violations. But even so, why is age an appropriate consideration under the Fourth and Eighth Amendments but not the Fifth?

The answer to this puzzle, or at least the one that leapt out at me from the 18 pages of the dissenting opinion, was the dissenters’ extreme dislike for Miranda itself. Justice Alito refers repeatedly to Miranda’s “rigid standards,” its “inflexible” requirements and the “high cost” to the criminal justice system of having to suppress “confessions that are often highly probative and voluntary by any traditional standard.” (The dissenters’ bigger target is undoubtedly the exclusionary rule, which requires the suppression of illegally obtained evidence, and which, based on recent decisions, is hanging by a thread.)

Justice Alito wonders why the police are still required “to provide a rote recitation of Miranda warnings that many suspects already know and could likely recite from memory.” In a footnote, he cites survey data indicating that large majorities of the public know that they have a right to remain silent and a right to have a lawyer appointed if they cannot afford one.

Justice Alito observes that the J.D.B. decision “portends” an “extreme makeover of Miranda.” I parse the warning inherent in that ambiguous sentence as follows: The majority’s abandonment of what Justice Alito calls the “one-size-fits-all reasonable-person test” will make it difficult to avoid taking other characteristics, like intelligence or education, into account in the custody inquiry; limiting the personal inquiry to age alone would be “arbitrary.” But extending the J.D.B. decision to pick up other characteristics, would, in Justice Alito’s words, “further undermine the very rationale for the Miranda,” namely, its ease of application that is its “core virtue.” In a don’t-throw-me-into-that-briar-patch move, Justice Alito suggests that at that point, the Miranda rule morphs into the case-by-case appraisal of a confession’s “voluntariness” that the Warren Court intended the 1966 decision to replace. At that point, Miranda becomes redundant, anachronistic, unnecessary — take your pick — and it’s time to kiss it goodbye.

I referred earlier to the decision in 2000 in which Chief Justice Rehnquist turned away from an opportunity to revisit Miranda, in a case in which the court considered the constitutionality of an obscure act of Congress that purported to trump Miranda and make the voluntariness standard the law of the land. In a majority opinion declaring the anti-Miranda statute unconstitutional, the chief justice delivered an astonishing performance.

The young Associate Justice Rehnquist, for whom the young John Roberts clerked, had been perhaps Miranda’s most outspoken opponent on the federal bench, whittling away at the precedent when he could and obviously biding his time until he could bury it entirely.

But by late in his career, Chief Justice Rehnquist had bigger goals in mind, limiting his battles to those that served what he deemed higher institutional needs like preserving the Supreme Court’s prerogative, vis-a-vis Congress, to “say what the law is.” The decision by his protégé and successor to vote in dissent in the new Miranda case has reinforced my belief that Chief Justice Roberts clerked for the wrong Rehnquist.